Category Archives: The View From L2 (Science Fiction and the Law)

Lagrangian points are positions in an orbital configuration where a small object affected only by gravity can theoretically be stationary relative to two larger objects. L2 is the Lagrangian point on the far side of the moon. The View From L2 is the category that all of LL2’s science fiction-related posts get shoved into.

Bethesda Softworks, IP Troll

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Mojang, the Swedish-based game developer behind MineCraft, has a new game coming out. It’s called Scrolls, and as far as I can figure out, it is the computer game hybrid of Magic the Gathering and Settlers of Catan. As described by developer Jacob Porser,

“At the core it’s a collectable card game, but it’s also a board game… It’s combining the two. As you place your units or your buildings, or your siege weapons, you place it on the game board to play against your opponent. It’s not only about designing a proper collection of scrolls [cards], and the tactical aspect of that deck, but it’s also about the tactical sense of how to place your units on the game board.”

Each scroll is essentially the same as an individual Magic card. This makes “Scrolls” a pretty obvious name for the game — and Mojang has already put a fair bit of money and effort into the branding:

“It’s always been Scrolls to me,” adds Carl Manneh, Mojang’s CEO, who joined the company a few months ago. “I think it’s a great name.” It seems pretty amazing that they managed to get the URLs. I ask if they [were] free? Both laugh, and shake their heads. So how did they get them? Carl explains, “It helps when you’ve got some cash.”

So while it’s still a little bit unclear exactly what Scrolls is going to be, it is clear that it is not going to be anything like a quest-based, sandbox RPG. In other words, it will be absolutely nothing like Morrowind or Oblivion or any other game in Bethesda Softworks’ The Elder Scrolls series.

Bethesda Softworks is not one to let such minor details get in the way of a good IP fight, however, and the company is now suing Mojang in Sweden for trademark infringement, over Mojang’s use of the Scrolls mark. According to Notch, Mojang’s owner,

I got a 15 page letter from some Swedish lawyer firm, saying they demand us to stop using the name Scrolls, that they will sue us (and have already paid the fee to the Swedish court), and that they demand a pile of money up front before the legal process has even started.

Currently, there is no lawsuit in the United States. Although Mojang filed a trademark application for Scrolls [PDF] in the U.S. on May 17, 2011, as it usually takes four months for the USPTO to get around to reviewing a trademark filing, a decision on the application won’t be expected until some time next month. Then, if the USPTO has no objections to the Scrolls mark, Bethesda Softworks’ parent company will then have 30 days to file a Notice of Opposition to it, and make its case that there is a likelihood of confusion between the two game titles.

In other words, expect the Bethesda vs. Mojang battle to be opening a second front over here in the States sometime around mid-October.

But do Bethesda’s objections to the Scrolls mark have any merit? While I couldn’t quite label them frivolous, they are unquestionably silly — the risk of consumer confusion here is close to nil, as there is no self-respecting gamer on earth that is going to try to buy Elder Scrolls V: Skyrim and accidentally end up buying Scrolls: The Gathering instead. Nor are they going to see Scrolls and go, “Gee, I wonder if this is the Oblivion card game!” No one even calls The Elder Scolls games “the Elder Scrolls games”; for that matter, hardly anyone seems to know what the “elder scrolls” of the series’ title are even supposed to be.

So in honor of Bethesda Softworks’ attempt to bully Mojang into abandoning the game title by threatening Mojang with rounds of expensive litigation, I have made Bethesda its own scroll. I hope Notch adds it to the game:

-Susan

Diverting Apophis: Russia Threatens to Break the Asteroid Suicide Pact

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A few days ago, I posted about how international law might affect the earth’s response to a threatened asteroid collision, specifically the threat posed by asteroid 2004 MN4, a.k.a. 99942 Apophis. It turns out I was a bit premature — Apophis is back in the headlines.

Even though the odds of Apophis hitting earth are on par with the the odds of me finding a job the odds of North Korea making it out of Group G alive, Russia is now courageously offering to fund a space mission to protect us from this deadly threat.

It remains to be seen how they plan to do so, however. Scientific American’s blog gets the story about right: Russian space chief makes vague threat to vaguely threatening asteroid.

Anatoly Perminov, the head of Russia’s space agency, said today that Russia will consider deflecting the near-Earth asteroid Apophis from its present path, according to news reports. After all, Apophis’s orbit periodically brings the 270-meter asteroid uncomfortably close to Earth, and it has long been on the watch list of nearby bodies that pose a threat (however slight) to Earth. The only problem is that Perminov seems not to have done his homework on the subject.

According to Perminov, “No nuclear explosions [will be carried out], everything [will be done] on the basis of the laws of physics.” And also the law of nations, apparently, as any sort of asteroid-diversion premised upon the use of explosives would likely be in violation of multiple treaties and GA resolutions. Because the expected non-collision is still decades in the future, however, Russia would not need to use nuclear warheads to divert the course of Apophis. Much subtler methods would work as well — I’ve seen some suggestions that even something as simple as painting one side of the asteroid white could change its orbit, thus pushing it farther away from Earth. (Or possibly right into it, who knows.)

Perminov is also quoted as saying, “A scientist recently told me an interesting thing about the path [of an asteroid] constantly nearing Earth… He has calculated that it will surely collide with Earth in the 2030s.”

This is blatantly incorrect, and I cannot imagine that the head of the Russian space agency would be unaware of that. Either Perminov was engaging in some unauthorized bluster, or else Russia has some bigger plans in mind. It is far too early to tell, based only upon the isolated musings of one official, but I do wonder if Russia is thinking of using the minuscule threat to humanity that Apophis poses as a PR cover for carrying out some otherwise objectionable space activities.

On one last note, although usually I use this blog to stretch a science fiction story to show how it can somehow be tangentially relevant to international law, this time I get to do the reverse. It looks like Stargate SG-1 is to blame for how the asteroid got its name:

Apophis is the Greek name given to the Egyptian demon Apep, who was the enemy of light and order, the personification of evil and chaos. Depicted as a giant snake, Apophis/Apep attacked the Sun god Ra as he made his way through the Egyptian underworld during the evening hours. Solar eclipses were thought to be Apep’s few daytime attempts to swallow Ra, who always succeeded in cutting his way out of the snake’s belly. As the enemy of Ma’at, the ancient Egyptian concept of order and law, Apep represented chaos.

However, mythology may not have been the only consideration in naming Apophis. Codiscoverers Dave Tholen and Roy Tucker are fans of the TV series Stargate SG-1. The show’s most persistent villain is Apophis, an alien also named for the Egyptian god. “We considered a number of names, but ‘Apophis’ kept floating to the top,” says Tucker. “Apophis was a very fitting name for 2004 MN4 not only because of its threatening nature, but also because of its evolution from an Aten asteroid to an Apollo asteroid during the 2029 encounter.”

Since this one got to come from Stargate, can we name the next asteroid that threatens human extinction “TARDIS”?

-Susan

The Economic Agendas of Sci-Fi and Fantasy Authors, Vol. 3: The Economic Apathy of J.R.R. Tolkien, the Anarchic Anti-Industrialist

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This is volume three of a very-infrequently-updated series. In previous posts on this blog, I discussed the more blatant economic agendas of fantasy and scifi authors Jack London and Terry Goodkind, as well as discussed the function of economics in other speculative fiction books in posts here, here, and here.

Finding evidence of economic systems in scifi and fantasy books is not hard. The use of economics in speculative fiction is not always blatant, of course, and more often than not it is used for world-building rather than to promote an author’s economic view point. But when envisioning their futuristic societies or when creating fantasy worlds, the vast majority of authors do incorporate some form of economic structure.

There is one glaring exception to this rule: J.R.R. Tolkien.

Because economic systems do not exist in Middle Earth.

Tolkien was — beyond all doubt — a god among world builders. But Middle Earth’s intricate mythology was simply that. A mythology. His world was not a functioning, messy, organic society, but a symbolic realm. In many ways, his detailed accounts of the history of Middle Earth are the equivalent of the Bible: the begatting of generations and the successions of kings are all accounted for in exquisite detail, but any accounts of the day-to-day life of Middle Earth’s inhabitants are left skeletal and superficial.

If you doubt that, consider the following questions: Did Gondor tax its citizens, and if not, how did it get its massive armies? Were there lawyers and judges in Rohan? Who wrote the laws in Bree? Did any race or kingdom have schools or systems of higher learning? Was there a mercantile class? Were there trade guilds at all, or tariffs, or monopolies? Could Dwarves or Hobbits or Elves freely choose their careers — and if so, were there career options beyond “farmer,” “miner,” “innkeeper,” and “soldier”? What sovereign minted the coins that occasionally appear in the books? Did people earn wages or were they paid stipends by feudal lords? Why is there no evidence of trade in Middle Earth in situations where in a real world we should expect to see some? What political and economic motives could Sauron’s human allies possibly have? How were the Rangers of the North, such as Strider, funded? For that matter, how was Gandalf funded — surely he needed some sort access to resources to accomplish all his doings? And perhaps most perplexingly, why do women, of all the races, appear to be on the verge of extinction?

No answers. (Well, unless of course the answers happen to be in The Silmarillion, I certainly am not about to read that one to find out.)

That last question should be a particular tip off, though. How can you know a civilization in any level of detail when fully one half of its citizens are essentially unmentioned?

Tolkien’s apathy towards the economy and social infrastructure of Middle Earth was by no means the result of simple oversight. It was a deliberate attempt to construct a world that conformed to his views of the human condition. Tolkien did not believe that human societies required regulation in order to function — and so Middle Earth went unregulated. In referring to his own views, Tolkien stated that,

My political opinions lean more and more to Anarchy (philosophically understood, meaning abolition of control not whiskered men with bombs) – or to ‘unconstitutional’ Monarchy. I would arrest anyone who uses the word State (in any sense other than the inanimate realm of England and its inhabitants, a thing that has neither power, rights nor mind).

When creating Middle Earth, it is apparent that Tolkien had, shall we say, an eye for detail, and it would be an insult to suggest he simply forgot to factor in economics and politics. As Tolkien wrote in a letter describing the hobbits’ arrival in Bree at the Prancing Pony Inn:

The landlord does not ask Frodo to ‘register’! Why should he? There are no police and no government … If details are to be added to an already crowded picture, they should at least fit the world described. (Tolkien, letter #210).

And the world described in the Lord of the Rings is one where economics does not exist.

Continue reading →

International Law is an Asteroid Suicide Pact

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On Volokh, the possibility of ‘AsteroidGate’ is discussed. Although the asteroid 2004 MN4 was originally suggested to have a 1 in 300 chance of hitting earth in 2029 (why worry? Everyone knows the earth is going to be destroyed long before then in 2012), it appears now that the true risk is closer to 1 in 250,000. I’m pretty comfortable with those odds myself — and even Dick Cheney’s one percent doctrine is clearly uncalled for, at least in the case of 2004 MN4.

However, a Wired article linked to on Volokh, Saving Earth From an Asteroid Will Take Diplomats, Not Heroes, brought up a few key points on why international law will have a big role to play in saving the world, should a big chunk of space debris ever head our way.

In the movie Armageddon, nuclear warheads are placed on an incoming asteroid to make it explode and miss earth. In real life, this never would have happened — nukes in space are clearly a violation of international law, and there is no “eminent extinction” exception provided for. In addition to the prohibitions contained in the Nuclear Test Ban Treaty, there is Article VI of the Space Treaty, which provides that:

States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

As AsteroidGate illustrates, it would be naive to assume that something as insignificant as the human race reenacting the dinosaurs’ extinction would be enough to cause mankind to join together to defeat a common threat. If, tomorrow, an asteroid were discovered that was a couple years away from impacting earth, I imagine the conversation would go something like this:

United States: Hey, UN, there’s this asteroid headed towards earth. Just to be on the safe side, we’re sending some nukes up into space to blast it to smithereens.
Rest of the World: Like hell you are. Do you really think we’re dumb enough to fall for the old “we’re all going to die if the U.S. doesn’t get to use nukes” routine again?
U.S.: No guys, I’m for serious. Here, check our facts. There is .2% chance that the earth will utterly perish in world ending explosion, and a 3% chance that it will only give us a glancing blow, only causing 75% of the human population to die off.
Rest of the World: You just made these numbers up. Let me guess, these figures come from the same research agency that found WMDs in Iraq? And besides, even if you didn’t make them up, our 3% odds with the asteroid are way better than the odds the earth would have once countries started launching nukes into orbit.
China: I think the U.S.’s idea sounds great! We’ve got some nukes we’ll send into space to help too, everyone cool with that?
U.S.: Oh, hmm, well this is a little bit awkward. Listen, China, thanks so much for the offer, but we were kind of thinking we’d be the only ones sending up nukes to kill the asteroid. You know what? Why don’t you just sit back and relax. Out of our deep feelings of generosity towards the UN, the United States will volunteer to cover all of the expenses of the Nukes-In-Space program.

In short, if an asteroid was discovered a few years away from hurtling into the earth, it’s a close call about which happen first, the international community deciding who and how would get to send up nuclear weapons, or the asteroid finally hitting us.

Nuclear weapons are not the only theoretical way to avert an asteroid impact, but there is no option that will not require extensive international coordination to implement. The B612 Foundation, for instance, proposes a long-term slow diversion of the asteroid:

Our preferred solution to deflecting an incoming near Earth asteroid (NEA), for reasons that are clarified below, is to rendezvous and “dock” with it at either its North or South Pole, realign the asteroid’s spin vector to a preferred direction and then push it (gently and for a long time) until we’ve changed its speed enough to miss the Earth.

But, as the Wired article above points out, this causes its own set of problems:

That’s a major geopolitical problem, Schweickart said, because it requires temporarily increasing the risk to one population — in the example above, Venezuela, or Russia — to eventually eliminate the risk for the entire Earth.

“It’s going to be slowly dragged across the Earth. That is a binary decision,” Schweickart said. “You don’t have the option of dragging it down through the Antarctic.”

Who gets to decide which way the asteroid is dragged away from an impact with Earth? The United Nations? The United States? Russia? Some independent body of astronomers and space agencies?

“What deflection technologies are OK and who says they are OK?” Schweickart asked. “Who accepts liability? How do you decide that it’s OK to endanger the people of Venezuela or the people of Kazakhstan?”

True, Siberia is in many ways an ideal place to risk an asteroid impact — they got hit by one last century, and it took a couple decades before anyone even noticed — but I do not expect that Russia would be too amiable to the suggestion. I suppose you could attempt some sort of economic solution, i.e., the countries that accept a small increased risk of being asteroided will not have to contribute to the cost of the asteroid diversion program, or maybe even receive payments from the countries not put at risk. Of course, this might very well be held up as an example of the developed countries, once again, putting the developing nations at risk to save their own hides.

-Susan

International Humanitarian Law Does Not Prohibit Shooting Locusts, Brutes, and Infected: Why Game Developers Should Stop Being Lazy and Stop Using War Crimes in Lieu of Plot

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Via Opinio Juris, a Swiss NGO has produced a report on the promotion of violations of international humanitarian law in video games. [PDF] This is a subject that’s actually bothered me before, and I am glad to see someone giving it some serious thought. Not only is the report’s game-by-game analysis of possible international law violations fascinating, but I’m completely on board with the authors’ stated purpose:

The goal is not to prohibit the games, to make them less violent or to turn them into IHL [International Humanitarian Law] or IHRL [International Human Rights Law] training tools. The message we want to send to developers and distributors of video games, particularly those portraying armed conflict scenarios, is that they should also portray the rules that apply to such conflicts in real life, namely IHRL and IHL. We would thus like to propose the producers to incorporate the essential rules of IHL [obligations].

First person shooters are pretty much the only game type I seriously play, but as a general rule, I don’t play FPS games that involve hunting down and killing other humans. My avoidance of them is due to a variety of factors: in part due to a dislike for the game concept, in part due to personal squeamishness, and in part due to an inability to suspend disbelief enough to become immersed in a game when I’m busy murdering people left and right. I would never advocate censorship of video games, but I would love for developers to be more aware of their games’ incidental promotion of war crimes, and to see new games incorporate into gameplay some of the real considerations involved in armed conflict, including compliance with humanitarian law.

As it stands today, many games treat war so callously and so unrealistically that they are not only offensive, they are also just plain bad and boring to play. I remember Army of Two, which is discussed unfavorably in the NGO article, being particularly nasty. Aside from the gameplay being laughably asinine (collecting “agro” so your partner turns invisible? For reals?), I had serious problems with playing two white dudes who are happily blasting their way through various hordes of Somalis and then blasting their way through various hordes of Iraqis, with the general mission guideline being “if someone looks like a native, shoot them.”

The game was even more disturbing when you realize that its timeline (1993 in Somalia, 2003 in Iraq) explicitly matches up with real life armed conflicts that the U.S. has been involved in. These games are not about theoretical, imaginary wars where only bad guys die — they are about very real events that resulted in the very real deaths of many innocent civilians.

War crime-promotion is disturbing in itself, but also bothersome in that, oftentimes, games that require the indiscriminate killing of human beings do so at the expense of having an enjoyable and nuanced story line. Pretty much all the games I do play, with one partial exception, feature clever and creative stories that avoid any need for human-on-human carnage. As a result, I can happily blast my way through Gears of War’s Locusts, Left 4 Dead’s zombies, and Halo’s Covenant troops without ever worrying about accidental humanitarian violations. (Well, okay — I sometimes feel a little guilty for mowing down terrified Grunts. But I do it anyway.)

The one FPS I enjoy that does involve killing humans is Half-Life. A lot of the shooting is directed at adorable little head crabs and antlions, which is cool by me, but the game also requires you to shoot at human Metro Cops. However, even there, thanks to the masks and voice disguisers, the CP’s are fairly easy to dehumanize. In terms of the game’s narrative, killing them does not tread as far into moral gray zones as do other human-killing games; they are an Orwellian paramilitary police force whose troops are all citizens who have become traitors to humanity. So shooting a couple in self-defense ain’t so bad, and doesn’t entail any risk of torture, summary execution, POW mistreatment, or abuse and murder of civilians.

Essentially, there is no game-based justification for why a game should allow players to engage in consequence-free war crimes. Designing games based upon a theme of wanton murder is a cheap cop-out by developers; gameplay could only benefit if violations of humanitarian law had serious in-game consequences, forcing players to either find a way to accomplish an objective without committing a war crime, or else go ahead and commit the war crime but then be forced to pay a substantial cost as a result.

I’d also point out that that even if a video game does not involve shooting humans, there is still ample room left over for indulgent, ivory tower analysis of gameplay under international law. Many important legal questions remain, such as, How is it in Halo that the UN finally got together the funding and state support necessary to create the elite UN Marine force? How do the laws of international organization responsibility apply to ODSTs? Does the treaty that formed the COG in Gears of War actually permit the forced conscription of soldiers in return for feeding their families? Not to mention, if a massive zombie invasion breaks out in an allied nation, does NATO require other states to act in collective defense of that state?

-Susan

And Now For Something Completely Different: Non-Fake Space Law

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If for some reason you’re interested in reading about real space law, as opposed to the fun space law that we like to feature here, Opinio Juris has had a couple posts up lately discussing issues of private enterprises investing in space exploration. Helium-3 mining, which has been been something of a science fiction trope over the years, is closer to becoming science reality, but as mentioned in previous posts, there’s quite a few unsettled questioned regarding private ownership and appropriation of natural resources in space. These unsettled legal issues will be a barrier to development in space:

[S]ignificant public or private investment in helium-3 mining would be predicated on a stable legal regime concerning the property and ownership issues of mined lunar resources. Thus … it is in the U.S.’s interest to take part in the construction of a lunar resource regime (be it treaty, international organization, or other policy option) sooner, rather than later.

Although it is something of a chicken and an egg question — while an improved space law regime will open the path towards greater investment in space exploration, the development of new space technologies will itself spur an evolution in the current legal framework:

When you have teen-aged hobbyists sending payloads as high as NASA research balloons, then you know the regulatory environment is about to undergo a basic change.

-Susan

The Law of Aliens, Part III.2: Aliens in South Africa and Aliens in France

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Editor’s Note: Yesterday, I said I’d write about the hypothetical example of aliens landing in Somalia. I was thinking I’d talk about the extremes — the differences in how international law would treat aliens in a failed state vs. aliens in the territory of a permanent member of the Security Council. But I’ve changed my mind; using Somalia makes the question too easy, as the lack of government there makes it exceedingly unlikely that other states would bother to respect Somalia’s territorial integrity in the event of an alien invasion. Instead, I’m going to borrow from District 9 and use South Africa as a hypothetical.

Situation #2: Aliens in South Africa

In a scenario similar to the premise of District 9, a lone alien spaceship lands in South Africa. The aliens’ behavior and appearance give no indication that they intend any harm to humanity, but the vast majority of States are unwilling to accept that at face value. South Africa, however, feels that it has the situation under control, and wants to treat with the aliens without foreign interference. The government of South Africa refuses to allow any other nations to visit the aliens or become involved in the situation, and only gives cursory answers to questions about the extraterrestrial visitors. Resolution through diplomacy does not appear likely, so if other states want to speak to, examine, or blow up the aliens, they can only do so by the use of force against the territorial integrity and political independence of South Africa — something which is absolutely prohibited under international law.

Do other States, then, have any available options under international law besides engaging in illegal acts of war against South Africa?

Possibly. The United Nations Security Council does have the power to authorize use of force in certain situations. However, Article 2.7 of the UN Charter exempts matters within the domestic jurisdiction of a state from UN control, unless a threat to the peace is involved:

“Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such domestic maters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII.”

Therefore, under Art. 2.7, if aliens land, and (1) by all appearances the aliens intend no threat to humanity, and (2) no one but the host state is aware of the alien presence, international law is not relevant. End of story. It would then be a matter essentially within South Africa’s domestic jurisdiction. (Plus, well, if no one knows about it, there’s no one who can raise the issue in the first place.)

If both these conditions are not present, then international law comes back into play.

Read the rest of this entry: When hosting aliens is a violation of international law »

The Law of Aliens, Part III.1: Extraterrestrials on the High Seas

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Editor’s Note: Yeah, I know I said this was going to be a three part series, but then I got slowed up this week. So the series will still be three parts, it’s just that part III is going to be done in two installments.

What happens if extraterrestrials slip through our solar system undetected, and are only encountered for the first time when they arrive on Earth itself?

Space law would no longer be applicable; rather, the situation would be governed by more traditional and more firmly established notions of international law. Although international/space law has not yet reached an ironclad understanding on where precisely outer space begins, for purposes of domestic laws and aeronautics regulations, the limit is most often set as the lowest point from sea level where an object can orbit the earth, i.e., 62 miles/100 kilometers up. (Objects cannot orbit for long at this altitude, due to air resistance, but they can take a few spins around the block.) Australia, in fact, has been proactive at setting the 100km boundary, and it does seem likely that it is eventually going to become the standard delineation.

So if aliens visit earth and are doing anything other than orbiting the planet, it’s good old fashion international law that’s going to provide any legal framework for the alien visitation. This means that, in practice, law will be a lot more relevant than it would be in the case of an outer space encounter.

A state’s sovereignty over its territory is one of the most fundamental concepts of international law. A state may not take action within another state’s territory absent consent. There are exceptions to every rule, of course. But although many parts of international law are often discarded or ignored, respect for a sovereign state’s territory is taken very seriously indeed.

In contrast, it would be fair to say that, in the not exactly probable event of an alien encounter in space, international law would most likely be given minimum lip service and little more. Space law is an infant body of law, and for obvious reasons, it is overloaded on the opinio juris component as compared to the state practice component. That’s a good indication that, in the event of a dramatic change in circumstances, states will not be reluctant to act in ways inconsistent with space law as it is currently understood, and instead will seek to justify their actions after-the-fact on the basis of previously “undiscovered” interpretations of law.

So, in a nutshell: international law would not survive five minutes past the first alien encounter in space.

On Earth, however, territorial sovereignty has such a deeply established normative and positive force in shaping the relationships between states that even in the event of an extraterrestrial landing, international law would continue to play a predominant role in how the world community reacted.

The exact strictures of international law to be applied, however, will depend in practice upon the location where the aliens choose to land.

Situation #1: Aliens land in the middle of the Atlantic Ocean and hover out over the high seas.

This is actually the worst possible scenario, for the aliens and probably also for earth. A “too many cooks in the kitchen” problem would quickly develop, as the high seas are open to all states. This includes a freedom of navigation, a freedom of overflight, and a freedom of scientific research. Essentially, every state would be free to go to, investigate, or attempt to talk to the alien spaceship — so that if North Korea wanted to start doing some “scientific research” on the ship, it would not be a straight forward matter for any State to justify prohibiting them from doing so.

If it turns out the aliens are friendly, Earth nations would be able to repel any attempts by non-state actors to attack the spaceship, as all States possess universal jurisdiction over pirates on the high seas. It wouldn’t be too much of a stretch to argue that unprovoked violence directed at a spaceship is an act of piracy, entitling other nations to use force to repel any attempts by private parties to act aggressively towards the spaceship.

But attacks on the spaceship by State actors will not be so easily regulated. Under Article 95 of the Convention on the Law of the Sea, “Warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State.” So if it’s North Korea acting aggressively against the aliens, we’ve got a problem.

True, Article 88 of the Law of the Sea Convention does declare that “The high seas shall be reserved for peaceful purposes.” But in the words of Captain Barbossa… this is really more of what you’d call a guideline than an actual rule. It doesn’t actually prohibit military actions, per se. It is international law of war, not the law of the sea, that would be the primary body of law to govern hostilities on the high seas. Although under international law, the threat or use of force is traditionally prohibited, it does not, technically speaking, prohibit the use of force against aliens.

Article 2:4 of the UN Charter declares, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” An alien spaceship does not obviously possess territorial integrity or political independence as a state, or at least not so clearly that North Korea couldn’t make a facially legitimate claim that Article 2:4 doesn’t apply to them. So the aliens would be fair game.

This doesn’t necessarily mean they’re defenseless, under international law. The right of self-defense is preserved in the UN Charter, and self-defense does extend to defense of others (I’ll assume for now aliens could qualify as part of the “collective” in Article 51) but in the chaos of an international free-for-all on the high seas, this would be of little practical protection. Besides, it’s not exactly settled law, regarding what acts a State can take against an extraterrestrial in the high seas before third party rights of self-defense kick in.

End result? The Law of the Sea isn’t going to be sufficient to protect or regulate any alien encounters on the high seas. If we’re lucky, however, the UN Security Council will be able to reach some kind of agreement and enable collective action to be taken. Under Article 42 of the UN charter, a blockade is one of the actions the Security Council can authorize to restore peace and international order. Although “blockades” are traditionally understood to apply to coastal navigation, it is not a heavy abuse of the language to say Article 42 would permit the Security Council to establish a blockade in the high seas. In this manner, the Security Council could authorize the use of force to protect the alien ship and to impose order on the normally unregulated oceans.

Next up tomorrow: The Law of Aliens, Part III.2: Extraterrestrials in Somalia South Africa and Extraterrestrials in France.

Previously: The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations, and Part II — The Law of Outer Space Encounters With Extraterrestrials by Sub-State Entities.

-Susan

The Law of Aliens, Part II: The Law of Post-Atmospheric Extraterrestrial Encounters By Non-State Entities

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The chairman of space history at the National Air and Space Museum has said that “[t]he idea that a private investor can put together the funds to develop rockets capable of a lunar mission is extremely speculative, verging on fantasy.” And so far, he’s been right.

But there are a fair few investors out there who want to prove him wrong, and one day, inevitably, if we ever want to truly expand into space rather than merely treat the cosmos as a glorified science lab, it’s going to take private commercial initiative to do it. So what happens if it’s a private corporate entity that first encounters intelligent extraterrestrial life?

Public international law (as opposed to conflicts of law) governs, in theory, only the relationships between sovereign states, not the actions of private individuals. The body of space law recognizes this, and rather than imposing restrictions on private spacecraft, it instead imposes obligations on states to regulate the space activities of non-governmental bodies under their jurisdiction.

As an initial matter, it is certainly legal under international law for non-government bodies to engage in space travel. The USSR, during negotiations over the Outer Space Treaty (“OST”), had originally wanted to ban all private space flight, but the U.S. refused to agree to this. However, whether private individuals can obtain property rights in space is a separate, more difficult, question. Although appropriations of resources by states is prohibited, this prohibition was not explicitly extended to cover non-governmental corporations. Many commentators have made the case that private ownership in space is therefore allowed, and have explained how ownership can exist even outside of state jurisdiction by reference to civil systems [PDF]:

The relationship between property and sovereignty differs under common law and civil law systems. The common law theory of title has its roots in feudal law. Under this theory the Crown holds the ultimate title to all lands, and the proprietary rights of the subject are explained in terms of vassalage. Civil law, on the other hand, is derived from Roman law, which distinguishes between property and sovereignty. Under this theory, it is possible for property to exist in the absence of sovereignty.

So for now I’m going to assume that, yes, private property in space is possible, based on a discovery-and-exploitation regime that grants rights to those who first make use of a new territory. (This will be partially in following with the property-ownership aspects of the Larkin Decision, from the Federation Court, holding that “the real owners [of a celestial body] were the flesh-and-blood men who had maintained the occupation.” See Robert A. Heinlein, Stranger in a Strange Land (1961).)

Read the rest of this entry: The case of Asteroid Miners v. Aliens »

The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations

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In keeping with LL2’s long standing tradition of providing you with the hardest hitting and most practical legal exposés, this blog will now present an informative series on the law of alien contact.

To begin with, I should probably instead use the word “extraterrestrial” rather than “alien,” as alien is already a well established legal term of art. So this is not the law of foreigners in a state’s territory, but rather the law of contact with intelligent non-human entities that did not originate from earth.

What if First Contact happened tomorrow? How would humans react, and how would the law apply? Assuming the aliens didn’t immediately blast us out of existence, that is. I think it’s safe to say each state would want to have its own say in how things with the aliens go down, and that states would have their own individual opinions and conflicting agendas regarding the encounter. Which means, inevitably, they would each take whatever actions they deemed appropriate and then afterwords seek to justify those actions on the basis of contorted interpretations of international law. The United Nations would also want to establish a central role for itself in the fray, and because it does possess the institutional mechanisms that states tend to follow when seeking to take multinational action, the UN would likely emerge as the primary vehicle through which multilateral discussions and actions would take place.

So international law would be the natural language for states to use when framing these discussions. In this first post, I am going to examine how international law in its current form would govern an encounter in outer space between extraterrestrials and a national or international body. The next two posts will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Read the rest of this entry: What if aliens land on a Canadian space ship? »